Commentary on Article 12. Multiple Commission of Criminal Offences of the Criminal Code of the Republic of Kazakhstan
Multiple commission of criminal offences shall be recognised as the commission of two or more acts provided for by the same Article or the same part of an Article of the Special Part of this Code. A crime and a criminal misdemeanour do not constitute multiple commission in relation to each other.
A criminal offence shall not be recognised as having been committed repeatedly if the person has been convicted or released from criminal liability on the grounds established by law for a previously committed criminal offence.
A continuing criminal offence, that is, a criminal offence consisting of a series of identical unlawful acts covered by a single intent and purpose and constituting, as a whole, one criminal offence, shall not be recognised as multiple commission.
In cases where multiple commission of crimes is provided for by this Code as a circumstance entailing a more severe punishment, the crimes committed by the person shall be classified under the relevant part of the Article of the Special Part of this Code providing for punishment for multiple commission of crimes.
In cases where multiple commission of criminal misdemeanours is provided for by this Code as a circumstance entailing a more severe punishment, the criminal misdemeanours committed by the person shall be classified under the relevant part of the Article of the Special Part of this Code providing for punishment for multiple commission of criminal misdemeanours.
The proper application of criminal law ensures protection of citizens against unfounded accusations and convictions, as well as the imposition on defendants of fair punishment proportionate to the acts committed. Therefore, where several criminal offences have been committed by the same person, it is necessary to establish the circumstances required for the proper application of criminal law and to classify the acts committed, taking into account the provisions of Articles 12 and 13 of the Criminal Code, which contain definitions of a continuing criminal offence, multiple commission of criminal offences, and the real and ideal concurrence of criminal offences.
Multiple commission of criminal offences is a system of stable connections having a distinctive structure consisting exclusively of identical criminal offences. Homogeneous criminal offences (similar in terms of their degree of public danger and legal construction) do not constitute multiple commission.
Acts whose objective and subjective elements of the constituent elements fully coincide shall be recognised as identical. Thus, two thefts committed by the same person differ in terms of place, time and other factual circumstances, but are identical in terms of the elements of the offence provided for by Article 188 of the Criminal Code.
In the theory of criminal law, homogeneous criminal offences are recognised as criminal offences encroaching upon the same or a similar object and committed with the same form of guilt and for similar motives, with direct intent for mercenary purposes, for example, theft, robbery, brigandage and fraud, aimed at taking possession of another person's property.
In Part 1 of the Article under comment, the legislator specifies that a crime and a criminal misdemeanour do not constitute multiple commission in relation to each other. Multiple commission is possible only where two or more identical crimes or two or more identical criminal misdemeanours are committed.
However, the legislator itself violates these requirements when drafting criminal law provisions in the Special Part of the Criminal Code. Thus, the first parts of Articles 228, 229 and 234 of the Criminal Code concern criminal misdemeanours. Where they are committed repeatedly by the perpetrator, liability is provided for in the second parts of these Articles, and the criminal misdemeanours acquire the status of crimes: under Part 2 of Article 228 and Part 2 of Article 234 of the Criminal Code — crimes of medium gravity, and under Part 2 of Article 229 of the Criminal Code — a crime of minor gravity. I hope that the legislator will eliminate these contradictions between the General and Special Parts of the Criminal Code.
In addition to Article 12 of the Criminal Code, which defines multiple commission, this feature is provided for in Subparagraph 1) of Part 1 of Article 54 of the Criminal Code as one of the circumstances aggravating criminal liability and punishment, and is widely used by the legislator as a qualifying feature of an act. Research has established that in many Articles of the Special Part of the Criminal Code, “multiple commission” is indicated as a qualifying and particularly qualifying feature. This feature is present in all Chapters, except Chapters 5, 7, 17 and 18 of the Special Part of the Criminal Code.
A criminal offence shall not be recognised as having been committed repeatedly if the person has been convicted or released from criminal liability on the grounds established by law for a previously committed criminal offence (Part 2 of Article 12 of the Criminal Code), as well as if the limitation periods for bringing criminal charges in respect of such an offence, provided for by Articles 71 and 88 of the Criminal Code, have expired.
When classifying an act on the basis of multiple commission or recognising multiple commission of crimes, in accordance with Subparagraph 1) of Part 1 of Article 54 of the Criminal Code, as a circumstance aggravating the criminal liability and punishment of the perpetrator, it should be taken into account that a crime is recognised as having been committed repeatedly where an identical completed crime has previously been committed, as well as where an attempt has been made to commit such a crime, where the person has acted as a co-perpetrator, or where the person has participated in such a crime as an accomplice.
Paragraph 5 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 25 June 2015, “On Certain Issues of Sentencing”, states: “The existence of multiple commission of criminal offences as a circumstance aggravating criminal liability and punishment, provided for in Subparagraph 1) of Part 1 of Article 54 of the Criminal Code, shall be determined in accordance with the concept of multiple commission established in Part 1 of Article 12 of the Criminal Code.
A person found guilty by a court judgment of committing two or more crimes (where they constitute multiple commission or real concurrence) cannot be recognised as a person who has committed a crime for the first time.”
If multiple commission is indicated in a criminal law provision as a qualifying feature, then the commission by the same person of several identical criminal offences shall, as a whole, be classified under the relevant Article (part of an Article) of the Criminal Code providing for liability for multiple commission of the particular criminal offence.
Where several criminal offences provided for by different parts of the same Article of the Criminal Code, which establish different qualifying features, are committed, these acts as a whole shall be classified only under that part of the Article which provides for a more severe punishment and encompasses the qualifying features. In such cases, the qualifying features of the criminal offence established in relation to the acts specified in other parts of the same provision of criminal law shall be included in the charge and indicated in the judgment.
The same classification procedure shall apply to a single act in which, alongside multiple commission, other qualifying features specified in other parts of the Article of the Criminal Code have also been established. For example, where theft has the qualifying feature of multiple commission specified in Part 3 of Article 188 of the Criminal Code, as well as other qualifying features specified in Part 4 of Article 188 of the Criminal Code, the act shall be classified under Part 4 of Article 188 of the Criminal Code. In this case, the qualifying features of theft established in relation to the acts specified in other parts of this provision of criminal law shall be included in the charge and indicated in the judgment.
As noted above, only identical criminal offences constitute multiple commission. Therefore, the commission of several homogeneous criminal offences cannot be recognised as multiple commission of criminal offences and shall be classified as a concurrence of criminal offences. For example, where a person commits theft and robbery, their acts shall be classified under the aggregate of Articles 188 and 191 of the Criminal Code, without the qualifying feature of multiple commission.
Pursuant to Part 3 of Article 12 of the Criminal Code, a continuing criminal offence consisting of a series of identical criminally punishable acts covered by a single intent and purpose and constituting, as a whole, one criminal offence shall not be recognised as multiple commission.
In this part, the legislator has defined the characteristics of a single continuing criminal offence, which must be distinguished from the repeated commission of an act. Objectively, a continuing criminal offence consists of a series of identical or equivalent acts (acts of omission), while subjectively it is characterised by a single intent and purpose. The similarity between continuing and repeatedly committed criminal offences lies in the fact that both involve the commission of not one, but several homogeneous or identical acts, each of which falls within the elements of a particular Article of the Criminal Code. However, unlike multiple commission, a continuing criminal offence is characterised by a profound internal connection, the absence of significant intervals between episodes linked together by the perpetrator's criminal design (the presence of the same form of guilt, identical motives and a single purpose). In such cases, all the acts committed as a whole should be recognised as a single continuing criminal offence and classified under one Article or part of an Article of the Criminal Code providing for liability for the commission of that criminal offence. For example, this includes embezzlement committed by appropriating entrusted funds in small amounts in order to obtain a substantial sum (Article 189 of the Criminal Code). The individual episodes of misappropriation in this case do not constitute independent elements of a criminal offence; they are linked into a single act of misappropriation by a common intention.
The Supreme Court of the Republic of Kazakhstan also emphasises the need to distinguish multiple commission of criminal offences from continuing criminal offences. Thus, Paragraph 4 of its Regulatory Resolution dated 25 December 2006, “On the Classification of Multiple Commission and Concurrence of Criminal Offences”, states: “It is necessary to distinguish multiple commission of criminal offences from continuing criminal offences. The commission by the same person of two or more criminal acts similar in terms of the method of commission and the object, characterised by a single intent and united by a common purpose, and, in the case of material elements, resulting in identical consequences, does not constitute multiple commission. In such cases, all the acts committed as a whole should be recognised as a single continuing criminal offence and classified under one Article or part of an Article of the Criminal Code providing for liability for the commission of that criminal offence.
If amendments establishing more severe liability for an act are introduced into criminal law during the period in which a continuing criminal offence is being committed, all episodes of the continuing criminal offence shall be classified as a single criminal offence in its entirety under the new law, provided that at least one of the episodes was committed during the period when the law in its new wording was in force.
If, during the period of a continuing criminal offence, the same person commits another criminal offence, the elements of which are not covered by the disposition of the Article of the Criminal Code providing for liability for the continuing criminal offence (for example, fraud is committed during the period of malicious evasion of the payment of funds for the maintenance of children), the actions of the perpetrator shall be classified as a concurrence of criminal offences under the relevant Article providing for liability for the continuing criminal offence and under the Article of the Criminal Code providing for liability for the other criminal offence.
If, during the period of a continuing criminal offence provided for by one part of an Article of the Criminal Code, a person commits another criminal offence provided for by another part of that Article of the Criminal Code, the elements of which are not covered by the disposition of the part of the Article of the Criminal Code providing for liability for the continuing criminal offence (for example, during the period of illegal storage of narcotic drugs in large quantities for the purpose of sale, a repeated sale of part of those drugs is committed), the person's actions shall be classified under the part of the Article of the Criminal Code which provides for the more severe punishment. In this case, the elements of all acts committed by the person must be included in the charge and indicated in the judgment.”
Multiple commission should also be distinguished from continuing criminal offences, which are characterised by the uninterrupted implementation of the elements of a particular criminally punishable act and consist of actions (or omissions) associated with the subsequent prolonged failure to fulfil obligations imposed on the perpetrator by law under the threat of criminal prosecution. Whereas repeatedly committed offences consist of separate acts, each of which is punishable under criminal law, a continuing offence is characterised by the uninterrupted implementation of the elements of a specific offence. Continuing criminal offences include evasion of payment of customs duties, customs fees, taxes, special, anti-dumping and countervailing duties (Article 236 of the Criminal Code), desertion (Article 442 of the Criminal Code), and others.
Since multiple commission, as a circumstance entailing more severe liability, is mentioned in a significant number of Articles of the Special Part of the Criminal Code, the legislator establishes rules for classifying such acts. Thus, pursuant to Parts 4 and 5 of Article 12 of the Criminal Code, where multiple commission of criminal offences (crimes and criminal misdemeanours, respectively) is provided for by the Criminal Code of the Republic of Kazakhstan as a circumstance entailing a more severe punishment, the criminal offences committed by the person shall be classified under the relevant part of the Article of the Special Part of the Criminal Code of the Republic of Kazakhstan providing for punishment for multiple commission of criminal offences. For example, Articles 187 of the Criminal Code, “Petty Theft”; 188, “Theft”; 189, “Misappropriation or Embezzlement of Entrusted Another's Property”; 190, “Fraud”; 191, “Robbery”, and so on, in the qualified elements of which the feature of multiple commission is provided as a qualifying feature. Where the legislator has not provided for multiple commission as a qualifying feature for a particular act, but the person commits that act not for the first time, this fact shall be taken into account by the court as an aggravating circumstance when imposing punishment.
In cases where a circumstance provided for by Articles 53 or 54 of the Criminal Code is indicated in the disposition of an Article of the Special Part of the Criminal Code of the Republic of Kazakhstan as one of the elements of a criminal offence, it shall not be taken into account when imposing punishment for the commission of that criminal offence as a circumstance mitigating or aggravating criminal liability and punishment.
Multiple commission as a qualifying feature of a particular criminal offence shall exist not only where the subject commits a completed criminal offence in the first and second instances or acts as the perpetrator, but also where the subject has committed criminally punishable preparation or an attempt, as well as where the subject has performed the functions of an accomplice (organiser, instigator or accessory).
This conclusion follows from the fact that the law recognises as a criminal offence not only completed criminally punishable activity but also unfinished activity (Article 24 of the Criminal Code), and not only the actions of the perpetrator but also the actions of other accomplices (Articles 28 and 29 of the Criminal Code).
In some criminal law provisions, the legislator uses the term “systematic nature” (for example, Article 110 of the Criminal Code). In the theory of criminal law, systematic nature is understood as the commission of the same act three or more times. Thus, systematic nature is similar to multiple commission in that, in both cases, the same act is committed several times. Apart from the quantitative distinction, the difference between them is that, in the case of multiple commission, each of the acts committed by the perpetrator that constitute multiple commission may be regarded as an independent criminal offence, whereas in the case of systematic conduct, each of them does not constitute an independent criminally punishable act. Therefore, the term “systematic nature” is used by the legislator to characterise the objective side of certain identical criminal offences, rather than as a qualifying feature of an act providing for a more severe punishment.
Systematic nature means the repeated commission of identical acts connected by a common direction and representing a single line of conduct. Thus, incitement to suicide (Article 105 of the Criminal Code), among other acts, includes the systematic humiliation of the victim's human dignity.
In the cases indicated, systematic nature is one of the mandatory elements, alongside other elements, of the basic constituent elements of a criminal offence.
In certain provisions, the legislator uses the term “multiple commission” to characterise the objective side of a criminal misdemeanour. Thus, Article 395 of the Criminal Code establishes criminal liability for an employer's repeated hiring of foreigners and stateless persons staying in the territory of the Republic of Kazakhstan without the appropriate authorisation from the authorised body, as well as for an employer's repeated violation of the rules governing the use of foreign labour in the Republic of Kazakhstan. Criminal liability for repeated delays by a person performing managerial functions in paying wages in full and within the prescribed time limits due to the use of funds for other purposes is established in Part 3 of Article 152 of the Criminal Code.
**Commentary on the Criminal Code of the Republic of Kazakhstan, 2021, by Isidor Shamilovich Borchashvili, Honoured Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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